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Justices Appear Skeptical of Government’s Position in Cases Where Immigration Judges Are Silent


The Supreme Court of the United States heard oral arguments Tuesday in the companion cases of Rosen v. Dai and Rosen v. Alcaraz-Enriquez. The immigration disputes ask whether an appellate court can presume an immigrant’s testimony is credible when lower courts were silent on the matter.

When it comes to asylum petitions, an immigrant’s personal credibility is a matter of paramount importance. A person requesting asylum must file a petition claiming that they will be persecuted if forced to return to their country of origin. If the immigrant proves in court that their “life or freedom would be threatened” on account of “the alien’s race, religion, nationality, membership in particular social group, or political opinion,” then U.S. law mandates that they must not be removed.

For asylum-seekers who have arrived on American soil without personal effects (or records), their word must be their bond. In many cases, immigrant testimony and tales of hardship are the basis for a court’s decision. If the fact-finding immigration judge deems an immigrant’s testimony to be credible, the Board of Immigration Appeals (BIA) and federal appellate courts will generally defer to that finding.

But what happens when the immigration judge says nothing about credibility in the court record?  That’s the issue.

In such a case, the U.S. Court of Appeals for the Ninth Circuit interprets the law as requiring appeals judges to assume the asylum seeker’s testimony was credible. Whether that practice is correct is now for SCOTUS to decide.

The legal dispute over procedure is underlaid by the stories of two immigrant families.

Mexican-born Cesar Alcaraz-Enriquez (“Alcaraz”) came to the U.S. at age eight. His parents and siblings are all either U.S. citizens or lawful permanent residents. Alcaraz has a history of serious mental illness, drug abuse, domestic violence, and time in prison. He has returned (both voluntarily and involuntarily) to Mexico several times over the years; each time, Alcaraz’s health deteriorates dramatically while in Mexico. His family wishes to care for him in the U.S.

In the companion case, petitioner Ming Dai testified that in 2009, Chinese officers came to his home where he lived with his wife and daughter. His wife, Li Qin, was four months pregnant with their second child. The officers forced Qin to have an abortion and to insert an IUD to prevent her from conceiving another child. They beat Dai and detained him for ten days with minimal food and water. He contends that if he returns to China, he will be forcibly sterilized.

In both cases, an immigration judge made no specific finding as to the claimant’s credibility.

While the question SCOTUS considers is a procedural one, it could have significant impact on asylum cases generally.

During Tuesday’s arguments, the Court focused most of its attention on language — in particular, on the definition of the word “credible.” The justices and counsel traded multiple competing possibilities for interpretation as the DOJ suggested that “credibility” isn’t necessarily the same thing as “persuasive.”

Lengthy and detailed as the arguments about statutory interpretation were, some patterns did emerge with respect to the justices’ reactions.

Justices Samuel Alito, Elena Kagan, and Amy Coney Barrett were noticeably skeptical of the government’s position. Each used some their questioning time to press the DOJ on whether “credibility” really differs from “persuasiveness.”

“The distinction you’ve drawn between credibility and persuasiveness is extraordinarily confusing” and therefore “invalid,” Justice Alito remarked to Assistant Solicitor General Colleen R. Sinzdak.  Similarly, Justice Barrett said she was “baffled” by the government’s contention. Justice Kagan brought the conversation back to Dai himself, saying,”He told a story. It’s an honest true story or it’s not.”

Justice Sonia Sotomayor was also dismissive of the DOJ’s credibility/persuasiveness distinction. She interrupted Sinzkak’s argument by saying, “I’m going to stop you there because I don’t want you eating up my time.

Justice Clarence Thomas seemed initially receptive to Sinzdak’s argument, chuckling repeatedly over Sinzdak’s analogy that a child purporting not to have eaten a cookie might be credible but not persuasive. Later, though, Thomas remarked to Neal Katyal (counsel for Cesar Alcaraz-Enriquez) that the government’s position “seems like a false dichotomy.”

[image via Chip Somodevilla/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos